41 Wis. 527 | Wis. | 1877
Lead Opinion
It is obvious that tlie most favorable view which can be taken of the plaintiff’s case, is to assume that the contract was as claimed by him, and as found by the jury upon the evidence. In that view, the written memorandum which was offered in evidence on the trial, may be said to show the terms of the contract as finally agreed upon by the parties. The inquiry then is, What was the duty or obligation of the defendant under the contract? Did he undertake and agree to receive and store the plaintiff’s logs in the Wausau boom, himself becoming responsible for the capacity of the boom to hold the logs when they should arrive, and for the ability or disposition of the boom company to take them into the boom? The plaintiff insists that under the contract the defendant assumed that responsibility. He had the undoubted right to bind himself to that extent by his contract; and if he has done so, the law will hold him to a strict performance of his undertaking.
By the contract, the defendant in effect agreed to take charge of all the plaintiff’s logs of certain designated marks, as quick as they should arrive at the Wausau boom, and to saw and deliver the lumber at the tail end of Molndoe’s mill, at a good place to raft, all for the payment of $2.75 per thousand feet; and to put all the lumber, or a portion thereof, in a pile at a good place to raft as soon as ordered, for the payment of $0.25 per thousand feet; and it was further understood that the defendant was to pay all the charges for boomage on the logs; the boomage charges being included in the $2.75 per thousand feet specified above; the plaintiff on his part agreeing to drive the logs mentioned to the Wausau boom as soon as the water would permit. These are the material clauses of the contract to be considered, and which determine the extent of the liability of the defendant in respect to the logs. As aiding in the construction of this contract, it is claimed by the defendant’s counsel that the state of facts which existed when it was entered into, and which it is reasonable to sup
By the Oov/rt. — The judgment of tbe circuit court is reversed, and a new trial ordered.
Rehearing
On the motion for a rehearing, it is claimed that the whole issue as to what the contract was, was fairly submitted under proper instructions, and that the jury found that the defendant agreed to receive and put the logs in the Wau-sau boom when and as fast as they should arrive at that point. But it must be borne in mind that the plaintiff himself testified that “ the writimg contavns the agreement 1 made with defendant, and it is correct, fist as we made it.” It was therefore assumed in the opinion that the memoi’andum contained the terms of the contract which the parties made. It
Rut it is said there is no exception taken to the rulings of the court below, which properly raises the question as to the construction of the contract. Exceptions were taken to the refusal of the court to give certain instructions asked by the defendant, which were more favorable to the plaintiff than the facts warranted. We need not dwell upon them. There was an exception taken to the giving of the instruction asked on the part of the plaintiff, which was not based upon any evidence in the case, and was calculated to prejudice the defendant. Moreover, there was an exception taken to the refusal of the court to set aside the verdict and grant a new trial for various reasons. This motion was based upon the minutes of the testimony, and should have been granted. The exception taken to that ruling is sufficient to raise the question we have considered.
By the Court. — The motion for a rehearing is denied.